Why was Arkansas's seventh attempt at a cannabis-repeal ballot measure rejected, even after the sponsor fixed the earlier wording problem?

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Plain-English summary

Marjorie LeClair submitted a seventh version of a proposed "Ban Prohibition of Cannabis" constitutional amendment after six earlier rejections. This time, unlike the immediately preceding version, the measure's text finally contained real operative language, "All laws pertaining to the production, distribution, sale and use of cannabis... are hereby repealed," fixing the defect that had sunk the sponsor's last submission.

The Attorney General rejected this version anyway, for a narrower reason. Section 3 of the measure said cannabis would be taxed "in accordance with the Arkansas Gross Receipts Tax Laws of 1941 and Constitution Tax Law." The opinion couldn't identify what "Constitution Tax Law" (capitalized, as written) referred to, since no provision of the Arkansas Constitution goes by that name, and a nearly identical earlier draft had used the different phrase "Constitutional Tax Laws" instead, suggesting the wording wasn't settled or deliberate. Because the office couldn't determine what legal authority this phrase was meant to invoke, it couldn't write an accurate ballot title summarizing the tax section's effect, and rejected the submission on that basis alone.

Background and analysis (as of 2013)

The opinion applied the same ballot-title certification framework used across all Arkansas initiative reviews: the office doesn't evaluate a measure's merits, only whether its popular name and ballot title honestly and accurately summarize what the measure's actual text does, and it must reject a submission when the text itself is too ambiguous to summarize, rather than guess at the sponsor's intent.

Unlike the sponsor's immediately prior submission (rejected in a companion opinion for lacking any operative repeal language), this version's Sections 1 and 2 finally contained clear, self-executing language actually repealing existing cannabis laws and barring the Legislature from re-enacting similar restrictions. That defect resolved, the opinion turned to Section 3's tax provision, which cited both the "Arkansas Gross Receipts Tax Laws of 1941" (a real, identifiable statute, albeit slightly mis-named, since the actual chapter title omits "Laws") and an unidentifiable "Constitution Tax Law." The opinion noted the sponsor's immediately previous draft had used "Constitutional Tax Laws" instead, a phrase that at least suggested a general reference to the Legislature's constitutional taxing authority, making the current draft's substitution and capitalization pattern look more like an inadvertent drafting error than a considered change, but one the office wasn't willing to guess about or resolve by assumption. Because a proposed constitutional amendment's text must stand on its own once adopted, the opinion found it couldn't respons ibly summarize an undefined, capitalized term purporting to reference the state constitution in a ballot title without knowing what it actually meant.

Citations and references

Statutes (as they stood in 2013):

• A.C.A. § 7-9-107, requiring Attorney General certification of a proposed measure's popular name and ballot title, with authority to substitute or reject
• A.C.A. § 7-9-107(b), requiring the office be able to fairly summarize a measure before certifying it
• A.C.A. § 7-9-107(c), governing amendment and resubmission of rejected measures
• A.C.A. § 26-52-101, the actual Code citation for the "Arkansas Gross Receipts Act" of 1941 referenced (and slightly mis-titled) in the measure's text

Cases:

• Kurrus v. Priest, 342 Ark. 434 (2000); Donovan v. Priest, 326 Ark. 353 (1996); Plugge v. McCuen, 310 Ark. 654 (1992), the office need not flag constitutional infirmities absent clear illegality
• Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463 (1984), the purpose of certification is an honest, intelligible, fair summary of the proposal
• Pafford v. Hall, 217 Ark. 734 (1950), the popular name is primarily a legislative device
• Chaney v. Bryant, 259 Ark. 294 (1976); Moore v. Hall, 229 Ark. 411 (1958), the popular name must avoid misleading or partisan coloring
• May v. Daniels, 359 Ark. 100 (2004), the popular name and ballot title are read together
• Becker v. Riviere, 270 Ark. 219 (1980), the ballot title must give a fair understanding of the issues
• Bailey v. McCuen, 318 Ark. 277 (1994), essential facts must be disclosed; imperfection is tolerated but misleading tendencies are not
• Becker v. McCuen, 303 Ark. 482 (1990), the ballot title must be honest and impartial
• Christian Civic Action Committee v. McCuen, 318 Ark. 241 (1994), the title must convey an intelligible idea of the scope of the change
• Roberts v. Priest, 341 Ark. 813 (2000), a measure's text creating internal inconsistency with its ballot title defeats certification

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DUSTIN McDANIEL

Opinion No. 2013-153

December 23, 2013

Marjorie LeClair, President
NCA-LWV

3362 Burnt Ridge Road
Shirley, Arkansas 72153-8329

Dear Ms. LeClair:

This is in response to your request for certification, pursuant to A.C.A. § 7-9-107
(Repl. 2013), of the following popular name and ballot title for a proposed
constitutional amendment. You have previously submitted similar measures,
which this office rejected due to ambiguities in the texts of the proposed measures.
See Op. Att'y Gen. Nos. 2013-140, 2013-131, 2013-117, 2013-109, 2013-094 and
2013-061. You have made changes in the text of your proposal since your last
submission and have now submitted the following proposed popular name and
ballot title for my certification:

Popular Name

BAN PROHIBITION OF CANNABIS

Ballot Title

Amend the Constitution of Arkansas to repeal all laws pertaining to
production, distribution, sale and use of the cannabis plant and
products thereof. The Arkansas Legislature shall make no laws
prohibiting or limiting the production, distribution, sale and use of
cannabis. Preemptive federal law will remain in effect unless altered
by congress.

323 CENTER STREET, SUITE 200 * LITTLE ROCK, ARKANSAS 72201
TELEPHONE (501) 682-2007 * FAX (501) 682-8084
INTERNET WEBSITE * http://www.ag.state.ar.us/

Marjorie LeClair, President
NCA-LWV

Opinion No. 2013-153
Page 2

The Attorney General is required, pursuant to A.C.A. § 7-9-107, to certify the
popular name and ballot title of all proposed initiative and referendum acts or
amendments before the petitions are circulated for signature. The law provides that
the Attorney General may substitute and certify a more suitable and correct
popular name and ballot title, if he can do so, or if the proposed popular name and
ballot title are sufficiently misleading, may reject the entire petition. Neither
certification nor rejection of a popular name and ballot title reflects my view
of the merits of the proposal. This Office has been given no authority to
consider the merits of any measure.

In this regard, A.C.A. § 7-9-107 neither requires nor authorizes this office to make
legal determinations concerning the merits of the act or amendment, or concerning
the likelihood that it will accomplish its stated objective. In addition, consistent
with Arkansas Supreme Court precedent, unless the measure is "clearly contrary to
law," this office will not require that a measure's proponents acknowledge in the
ballot title any possible constitutional infirmities. As part of my review, however,
I may address constitutional concerns for consideration by the measure's
proponents.

Consequently, this review has been limited primarily to a determination, pursuant
to the guidelines that have been set forth by the Arkansas Supreme Court,
discussed below, of whether the popular name and ballot title you have submitted
accurately and impartially summarize the provisions of your proposed amendment.

The purpose of my review and certification is to ensure that the popular
name and ballot title honestly, intelligibly, and fairly set forth the purpose of
the proposed amendment or act.2

The popular name is primarily a useful legislative device.1 It need not contain
detailed information or include exceptions that might be required of a ballot title,

1 See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326 Ark. 353,
359, 931 S.W.2d 119, 121 (1996); Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992).

2 See Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984).

3 Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).

Marjorie LeClair, President
NCA-LWV

Opinion No. 2013-153
Page 3

but it must not be misleading or give partisan coloring to the merit of the
proposal.4 The popular name is to be considered together with the ballot title in
determining the ballot title's sufficiency.5

The ballot title must include an impartial summary of the proposed amendment or
act that will give the voter a fair understanding of the issues presented.6 According
to the court, if information omitted from the ballot title is an "essential fact which
would give the voter serious ground for reflection, it must be disclosed."7 At the
same time, however, a ballot title must be brief and concise (see A.C.A. § 7-9-
107(b)); otherwise voters could run afoul of A.C.A. § 7-5-522's five minute limit
in voting booths when other voters are waiting in line.8 The ballot title is not
required to be perfect, nor is it reasonable to expect the title to cover or anticipate
every possible legal argument the proposed measure might evoke.9 The title,
however, must be free from any misleading tendency, whether by amplification,
omission, or fallacy; it must not be tinged with partisan coloring.10 The ballot title
must be honest and impartial,11 and it must convey an intelligible idea of the scope
and significance of a proposed change in the law.12

4 E.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976); Moore v. Hall, 229
Ark. 411, 316 S.W.2d 207 (1958).

5 May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).

6 Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980).
7 Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
8 Id. at 288, 884 S.W.2d at 944.

9 Id. 293, 884 S.W.2d at 946-47.

10 Id. at 284, 884 S.W.2d at 942.

11 Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).

12 Christian Civic Action Committee v. McCuen, 318 Ark. 241, 245, 884 S.W.2d 605, 607 (1994)
(internal quotations omitted).

Marjorie LeClair, President
NCA-LWV

Opinion No. 2013-153
Page 4

Furthermore, the Court has confirmed that a proposed amendment cannot be
approved if "[t]he text of the proposed amendment itself contribute[s] to the
confusion and disconnect between the language in the popular name and the ballot
title and the language in the proposed measure."13 The Court concluded that
"internal inconsistencies would inevitably lead to confusion in drafting a popular
name and ballot title and to confusion in the ballot title itself."14 Where the effects
of a proposed measure on current law are unclear or ambiguous, it is impossible
for me to perform my statutory duty to the satisfaction of the Arkansas Supreme
Court without clarification of the ambiguities.

Having analyzed your proposed amendment, as well as your proposed popular
name and ballot title under the above precepts, it is my conclusion that I must
reject your proposed popular name and ballot title due to an ambiguity in the text
of your proposed measure. I cannot at this time fairly or completely summarize
the effect of your proposed measure to the electorate in a popular name or ballot
title without the resolution of this ambiguity. I am therefore unable to substitute
and certify a more suitable and correct popular name and ballot title pursuant to
A.C.A. § 7-9-107(b).

The text of your measure provides in its entirety:
Section 1
All laws pertaining to the production, distribution, sale and use of
cannabis and products derived from the cannabis plant are hereby
repealed.
Section 2
The Arkansas legislature shall pass no law prohibiting or limiting the

production, distribution, sale, and use of the cannabis plant and its
derivatives.

13 Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 383 (2000).

14 Id.

Marjorie LeClair, President
NCA-LWV

Opinion No. 2013-153
Page 5

Section 3

Cannabis and its derivatives shall be taxed in accordance with the
Arkansas Gross Receipts Tax Laws of 1941 and Constitution Tax
Law.

Section 4

The Arkansas Legislature has the responsibility for categorizing
products for tax purposes or tax exemption and shall classify
cannabis and its products into their respective categories.

I must reject this submission because Section 3 is ambiguous in its reference to
"Constitution Tax Law," rendering it impossible for me to summarize the
substance and effects of your submission in a ballot title. I am unable to determine
what you mean by this term. My inability to do so is only reinforced by the fact
that you have capitalized this coinage, suggesting that you are referring to some
unidentified provision of the Arkansas Constitution itself. Given that the Arkansas
Constitution contains no provision captioned or generally recognized as the
"Constitution Tax Law," I am unable to advise the voters in a ballot title what the
provision authorizes.

I suspect, but cannot assume based merely upon this suspicion, that you intend to
authorize the legislature to impose cannabis-related taxes not only under the
Arkansas Gross Receipts Act of 1941, but further under any law enacted within
the legislature's current constitutional taxing authority. Indeed, in your
immediately previous submission, the phrase at issue read "Constitutional Tax
Laws" (emphasis added), suggesting something quite different than your current
submission. I do not know and am disinclined to speculate whether you merely
omitted through inadvertence the "al" from "Constitutional" in your current
submission. I likewise do not know and am disinclined to speculate why you
capitalized the term in question in either of your most recent submissions.15 I can

15 I will note, however, that your current submission, short though it may be, reveals an unfortunately
cavalier attitude toward capitalization. It refers at one point, for instance, to the "Arkansas Legislature" and
at another to the "Arkansas legislature." It further refers by the wrong name to the chapter of the Code

Marjorie LeClair, President
NCA-LWV

Opinion No. 2013-153
Page 6

only note that without clarification I cannot summarize the meaning of this
provision as submitted in a ballot title.

I cannot begin to certify a ballot title for your proposed amendment in the face of
the ambiguity noted above. You must remedy this confusing and ambiguous point
before I can perform my statutory duty.

My office, in the certification of ballot titles and popular names, does not concern
itself with the merits, philosophy, or ideology of proposed measures. I have no
constitutional role in the shaping or drafting of such measures. My statutory
mandate is embodied only in A.C.A. § 7-9-107 and my duty is to the electorate. I
am not your counsel in this matter and cannot advise you as to the substance of
your proposal.

My statutory duty, under these circumstances, is to reject your proposed ballot
title, stating my reasons therefor, and to instruct you to "redesign" the proposed
measure and ballot title.16 You may, after clarification of the matters discussed
above, resubmit your proposed amendment, along with a proposed popular name
and ballot title, at your convenience. I anticipate, as noted above, that some
changes or additions to your submitted popular name and ballot title may be
necessary. I will be pleased to perform my statutory duties in this regard in a
timely manner after resubmission.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM/cyh

Enclosure

known as the "Arkansas Gross Receipts Act [not "Laws"] of 1941." See A.C.A. § 26-52-101 (Repl. 2008)
(reciting the title of the pertinent Code chapter). I must remind you again that you are attempting to amend
the Arkansas Constitution, an enterprise that will not allow of such careless inconsistencies and errors.

16 See A.C.A. § 7-9-107(c).

Cheryl Hall

From: Marjorie Leclair marjorieleclair2@hotmail.com
Sent: Sunday, December 08, 2013 5:29 PM
To: Cheryl Hall

Below find my resubmission requesting approval of my proposal. Thank you, Marjorie
Popular Name

BAN PROHIBITION OF CANNABIS

Ballot Title

Amend the Constitution of Arkansas to repeal all laws pertaining to production,
distribution, sale and use of the cannabis plant and products thereof. The Arkansas
Legislature shall make no laws prohibiting or limiting the production, distribution,
sale and use of cannabis. Preemptive federal law will remain in effect unless
altered by congress.

Text

Section 1

All laws pertaining to the production, distribution, sale and use of cannabis and
products derived from the cannabis plant are hereby repealed.

Section 2

The Arkansas legislature shall pass no law prohibiting or limiting the production,
distribution, sale, and use of the cannabis plant and its derivatives

Section 3

Cannabis and its derivatives shall be taxed in accordance with the Arkansas Gross
Receipts Tax Laws of 1941 and Constitution Tax Law.

Section 4

The Arkansas Legislature has the responsibility for categorizing products for tax

purposes or tax exemption and shall classify cannabis and its products into
their respective categories.